EXHIBIT 1
TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED PARTNERSHIP
$300,000,000
___% Junior Maturing Principal Securities Due ___
UNDERWRITING AGREEMENT
___________, 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
as representatives of the several Underwriters
named in Schedule II hereto (the "Representatives")
c/o Xxxxxxx Xxxxx Barney Inc.
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introduction. TXU Australia Holdings (Partnership) Limited
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Partnership, a limited partnership formed under the laws of Victoria, Australia
(the "Company") and the Company's general partner, TXU Australia Holdings (AGP)
Pty Ltd (Australian Company Number 086 014 931), a limited liability company
incorporated under the laws of Victoria, Australia ("AGP" and hereinafter,
together with the Company, the "TXUA Companies"), confirm their agreement with
respect to the issue and sale by the Company and the purchase by the
underwriters named in Schedule II hereto (the "Underwriters"), acting severally
and not jointly, for whom you are acting as Representatives, of the principal
amount of ___% Junior Maturing Principal Securities Due ___ (the "Securities"),
as set forth next to each Underwriter's name in such Schedule II.
2. Description of the Securities. The Securities will be issued
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pursuant to an Indenture, dated as of , 2000, between The Bank of
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New York, as trustee, and the Company, as it will be supplemented by a
certificate of an officer of the Company relating to the Securities (as so
supplemented, the "Indenture").
3. Representations and Warranties of the TXUA Companies. The TXUA
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Companies, jointly and severally, represent and warrant to the several
Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1,
including a prospectus, on , 2000 (Registration No. 333-
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) for the registration under the Securities Act of 1933, as amended
(the "Securities Act") of the Securities. Such registration statement
was declared effective by the Commission on , 2000 and no
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stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated
or, to the best knowledge of the TXUA Companies, threatened by the
Commission. Such registration statement, as amended at the time it (or
the most recent post-effective amendment thereto) became effective
(the "Effective Date"), including the financial statements, the
exhibits thereto and the information deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the Securities Act, shall be referred to herein as
the "Registration Statement", any preliminary prospectus relating to
the Securities included in the Registration Statement prior to the
Effective Date or filed with the Commission pursuant to paragraph (a)
of Rule 424 (as defined herein) prior to the Effective Date or
pursuant to paragraph (b) of Rule 424 after the Effective Date shall
be referred to herein as the "Preliminary Prospectus," and the
prospectus dated the date hereof containing the final terms of the
Securities filed with the Commission in accordance with Rule 430A and
Rule 424 shall be referred to herein as the "Prospectus."
(b) The Registration Statement and the Indenture, at the
Effective Date, and the Preliminary Prospectus, when delivered to the
Underwriters for their use in marketing the Securities, complied, and
the Prospectus, at the time it is filed pursuant to Rule 424 and at
the Closing Date, as hereinafter defined, will comply as to form in
all material respects with the applicable provisions of the Securities
Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the applicable rules and regulations of the Commission
thereunder; at the Effective Date, the Registration Statement did not,
and at the Closing Date, the Registration Statement will not, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; at the time that it was delivered to the
Underwriters, the Preliminary Prospectus did not, and on the date it
is filed with the Commission pursuant to Rule 424 of the rules and
regulations of the Commission under the Securities Act ("Rule 424")
and at the Closing Date, the Prospectus will not, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that the foregoing representations and warranties in this Section 3(b)
shall not apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to any of the TXUA
Companies by, or on behalf of, any Underwriter through the
Representatives or Counsel for the Underwriters, expressly for use in
the Registration Statement, the Preliminary Prospectus or the
Prospectus or to any statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act, or
amendments thereto, filed as exhibits to the Registration Statement.
(c) The execution and delivery of this Agreement by each of
the TXUA Companies, and the consummation of the transactions
contemplated herein and in the Prospectus by each of the TXUA
Companies and the fulfillment of the terms hereof by each of the TXUA
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Companies will not (i) result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, charter, partnership agreement, limited liability
company agreement, by-laws or other organizational documents or any
other agreement or instrument to which any of the TXUA Companies is
now a party, which default or breach is material to the respective
TXUA Company and the respective subsidiaries of each of them, taken as
a whole or (ii) conflict with or result in a breach or violation of
any statute, law, rule, regulation, judgment, order or decree
applicable to any of the TXUA Companies of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over any of the TXUA Companies.
(d) Each of the TXUA Companies and each direct and indirect
material subsidiary of the TXUA Companies has been created, formed or
incorporated, as the case may be, and, in the case of any Victorian
limited partnership, registered, and is validly existing and, where
applicable, in good standing under the laws of the jurisdiction of its
creation, formation or incorporation, as the case may be, has the
power and authority to own, lease and operate its properties, to
conduct its business as currently conducted and as set forth in or
contemplated by the Prospectus and to consummate the transactions
contemplated herein and in the Prospectus, and is qualified to
transact business and is in good standing in each jurisdiction in
which such qualification and good standing is requ)red, whe4`%2 by
reason of the ownership or leasing of property or the conduct of
business, except, with respect to each direct and indirect material
subsidiary of the TXUA Companies, where the failure to so qualify or
be in good standing would not have a material adverse effect on the
business, property or financial condition of the TXUA Companies and
mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a)
are described in the Prospectus or (b) do not, singly or in the
aggregate, materially adversely affect the value of such property and
do not materially interfere with the use made and proposed to be made
of such property; and all of the leases and subleases material to the
business of the TXUA Companies and their subsidiaries, taken as a
whole, and under which the TXUA Companies or any of their material
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither of the TXUA Companies has notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of either of the TXUA Companies or any material subsidiary
of the TXUA Companies under any of the leases or subleases mentioned
above, o
respective businesses and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the TXUA
Companies and their subsidiaries, taken as a whole.
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(g) Each of the TXUA Companies and each of their material
subsidiaries has good title to all real property and other properties
owned by it (other than properties which are not material to the
financial condition or the conduct of the business of the TXUA
Companies and their subsidiaries, taken as a whole), in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a)
are described in the Prospectus or (b) do not, singly or in the
aggregate, materially adversely affect the value of such property and
do not materially interfere with the use made and proposed to be made
of such property; and all of the leases and subleases material to the
business of the TXUA Companies and their subsidiaries, taken as a
whole, and under which the TXUA Companies or any of their material
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither of the TXUA Companies has notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of either of the TXUA Companies or any material subsidiary
of the TXUA Companies under any of the leases or subleases mentioned
above, or affecting or questioning the rights of either of the TXUA
Companies or any material subsidiary of the TXUA Companies to the
continued possession of the leased or subleased properties under any
such lease or sublease.
(h) Each of the TXUA Companies and each of their material
subsidiaries has filed all national, state, local and foreign tax
returns which have been required to be filed and has paid all taxes
shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested
in good faith, except where the failure to have made such filings or
to have paid such taxes and assessments would not have a material
adverse effect on the TXUA Companies and their subsidiaries, taken as
a whole; and there is no tax deficiency which has been asserted or, to
the knowledge of the TXUA Companies, threatened against either of the
TXUA Companies or any of their material subsidiaries which would be
expected to have a material adverse effect on the TXUA Companies and
their subsidiaries, taken as a whole.
(i) Each of the TXUA Companies and each of their material
subsidiaries own, possess or have obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
(collectively "Authorizations") from all national, state, local and
other governmental authorities (including foreign regulatory
agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate their respective properties and to carry on
their respective businesses as conducted as of the date hereof, except
where the failure to own, possess or obtain such Authorizations or to
have made such declarations and filings would not have a material
adverse effect on the TXUA Companies and their subsidiaries, taken as
a whole; to the knowledge of the TXUA Companies and their material
subsidiaries, each Authorization is in full force and effect, except
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where the failure of such Authorization to be in full force and effect
would not be reasonably expected to have a material adverse effect on
the TXUA Companies and their subsidiaries, taken as a whole; neither
of the TXUA Companies or their material subsidiaries has received any
actual notice of any proceeding relating to revocation or modification
of any such Authorization, except as described in the Prospectus and
except as would not, if the subject of an unfavorable decision, be
reasonably expected to have a material adverse effect on the TXUA
Companies and their subsidiaries, taken as a whole.
(j) No stamp or other issuance or transfer taxes or duties
are payable by or on behalf of the Underwriters in Australia or any
political subdivision or taxing authority thereof or therein on (i)
the authorization, issue, delivery or performance of the Securities,
or (ii) assuming all of the following transactions take place outside
Australia, the purchase by the Underwriters of the Securities from the
Company, the resale and delivery by the Underwriters of the
Securities, the execution, delivery and performance of this Agreement
and the Indenture or the consummation of the transactions contemplated
by this Agreement or the Prospectus.
(k) No exchange control authorization or any other
authorization, approval, consent or license of any governmental
authority or agency of or in Australia is required for the payment by
the Company of any amounts in United States dollars pursuant to the
terms of the Securities.
(l) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the TXUA Companies of their respective obligations
hereunder, in connection with the offering, issuance or sale of the
Securities or the consummation of the transactions contemplated by
this Agreement or by the Prospectus except (i) such as have been
obtained under the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act or the
applicable rules and regulations thereunder and (ii) such as may be
required under United States securities or "blue sky" laws.
(m) The TXUA Companies and their respective obligations
under this Agreement, the Securities and the Indenture are subject to
civil and commercial law and to suit and none of them nor any of their
respective properties, assets or revenues has, in Australia or any
political subdivision thereof or in the United States or any political
subdivision thereof, any right of immunity from any legal action, suit
or proceeding, from the giving of any relief in any such legal action,
suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court, from service of process, attachment upon or prior to
judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such
jurisdiction, with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with the
issuance of the Securities; and, to the extent that either of the TXUA
Companies or any of their respective properties, assets or revenues
may have or may hereafter become entitled to any such right of
immunity in any jurisdiction, each of the TXUA Companies has
effectively waived such right and consented to such relief and
enforcement pursuant to Section 14 of this Agreement; nothing in this
Section 3(m) shall be deemed to waive any defense (other than any such
immunity) available to any TXUA Company.
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(n) The Indenture has been duly qualified under the Trust
Indenture Act.
(o) The Indenture has been duly authorized by the Company,
and at the Closing Date the Indenture will have been duly executed and
delivered by the Company, and, when duly executed and delivered by the
trustee thereof, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of
general principles of equity.
(p) The Securities have been duly authorized by the Company
for issuance and sale to the Underwriters and, at the Closing Date,
the Securities will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided in the
Indenture and delivered against payment of the purchase price therefor
as contemplated by this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally
and of general principles of equity, and the Securities will be
entitled to the benefits of the Indenture.
(q) This Agreement has been duly authorized, executed and
delivered by each of the TXUA Companies, each of which has the
necessary power and authority to execute and deliver and perform its
obligations under this Agreement.
(r) The Indenture and the Securities will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus.
(s) Other than as set forth or contemplated in the
Registration Statement and the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the TXUA
Companies, threatened (i) to which either of the TXUA Companies or any
of their material subsidiaries is a party or to which any property of
either of the TXUA Companies or any of their material subsidiaries is
the subject that is reasonably expected to have a material adverse
effect on the TXUA Companies and their subsidiaries, taken as a whole
or (ii) which, if determined adversely to any of the TXUA Companies or
their material subsidiaries, could reasonably be expected to have a
material adverse effect on the ability of the TXUA Companies to
consummate the transactions contemplated by this Agreement and the
Prospectus.
(t) AGP is the sole general partner of the Company; AGP has
the power to enter into the Indenture, the Agreement and the other
documents (including without limitation under the Company's
partnership deed) contemplated by the transactions described in the
Prospectus on behalf of the Company and to bind the Company under, and
as contemplated by, all such documents; AGP has, in full force and
effect, all authorizations (including without limitation under the
Company's partnership deed) necessary to enter into all such documents
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on behalf of the Company and to bind the Company under, and as
contemplated by, such documents.
The TXUA Companies acknowledge that the Underwriters, and, for
purposes of the opinions to be delivered to the Underwriters pursuant to Section
8(c) hereof, each counsel to any of the TXUA Companies and counsel to the
Underwriters, will rely upon the accuracy and truth of the foregoing
representations. The TXUA Companies hereby consent to such reliance.
4. Representations and Warranties of the Underwriters. Each of the
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Underwriters severally represents and agrees that it has not and will not,
directly or indirectly, offer for subscription or purchase, issue invitations to
subscribe for or purchase or sell any of the Securities in Australia or to any
residents of Australia (including corporations and other entities organized
under the laws of Australia, but not including a permanent establishment of
those corporations or other entities located outside of Australia).
5. Purchase and Sale.
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(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set
forth, the Company shall issue and sell to each of the Underwriters,
and each Underwriter shall purchase from the Company, at the time and
place herein specified, severally and not jointly, the respective
principal amount of Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto, at the purchase price set
forth in Schedule I hereto.
(b) The Company shall pay on the Closing Date to Xxxxxxx
Xxxxx Xxxxxx Inc., for the accounts of the several Underwriters, a
commission equal to $_____.
6. Time and Place of Closing. Delivery of the Securities against
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payment of the aggregate purchase price therefor by wire transfer in federal
funds shall be made at the office of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York Time, on
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2000, or at such other place, time and date as shall be agreed upon in writing
by the Company and the Representatives, or established in accordance with the
following paragraph. The hour and date of such delivery and payment are herein
called the "Closing Date". The Securities shall be delivered to The Depository
Trust Company or to The Bank of New York, as custodian for The Depository Trust
Company, in fully registered global form registered in the name of Cede & Co.
for the respective accounts of the Underwriters not later than the close of
business on the business day preceding the Closing Date. The Company agrees to
make the Securities available to the Representatives for checking purposes not
later than 10:00 A.M., New York Time, on the last business day preceding the
Closing Date at the office of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or at such other place as the Company may specify.
If any Underwriter shall fail or refuse (otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the principal amount of Securities that such Underwriter has agreed to
purchase and pay for hereunder, the Company shall immediately give notice to the
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other Underwriters of the default of such Underwriter, and the other
Underwriters shall have the right within 24 hours after the receipt of such
notice to determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc. ("NASD") (or, if
not members of the NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Conduct Rules) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the principal amount of
Securities that the defaulting Underwriter had agreed to purchase. If any
non-defaulting Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice to the Company
of the determination in that regard within 24 hours after receipt of notice of
any such default, and thereupon the Closing Date shall be postponed for such
period, not exceeding three business days, as the Company shall determine. If in
the event of such a default no non-defaulting Underwriter shall give such
notice, then this Agreement may be terminated by the Company, upon like notice
given to the non-defaulting Underwriters, within a further period of 24 hours.
If in such case the Company shall not elect to terminate this Agreement it shall
have the right, irrespective of such default:
(a) to require each non-defaulting Underwriter to purchase
and pay for the respective principal amount of Securities that it had
agreed to purchase hereunder as hereinabove provided and, in addition,
the principal amount of Securities that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth (1/9) of the principal amount of Securities that
such non-defaulting Underwriter has otherwise agreed to purchase
hereunder, and/or
(b) to procure one or more persons, reasonably acceptable to
the Representatives, who are members of the NASD (or, if not members
of the NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its territories
or its possessions or to persons who are citizens thereof or residents
therein and (ii) in making sales to comply with the NASD's Conduct
Rules), to purchase, upon the terms herein set forth, either all or a
part of the principal amount of Securities that such defaulting
Underwriter had agreed to purchase or that portion thereof that the
remaining Underwriters shall not be obligated to purchase pursuant to
the foregoing clause (a).
In the event the Company shall exercise its rights under (a) and/or (b) above,
the Company shall give written notice thereof to the non-defaulting Underwriters
within such further period of 24 hours, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred to in this
Section 6, there shall be excluded a period of 24 hours in respect of each
Saturday, Sunday or legal holiday that would otherwise be included in such
period of time.
Any action taken by the Company under this Section 6 shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement. Termination by the Company under this Section
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6 shall be without any liability on the part of the Company or any
non-defaulting Underwriter, except as otherwise provided in Sections 7(g) and 10
hereof.
7. Covenants of the Company. The Company agrees that:
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(a) It will promptly deliver to each of you a signed copy of
the Registration Statement as originally filed or, to the extent a
signed copy is not available, a conformed copy, certified by an
officer of the Company to be in the form as originally filed,
including all exhibits, and of all amendments thereto.
(b) It will deliver to you, as soon as practicable after the
date hereof, as many copies of the Prospectus or any supplement or
amendment thereto as of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable after the date
hereof and advise you of (i) the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which any of the TXUA
Companies shall have received notice and (ii) any request by the
Commission for amendments or supplements to the Registration Statement
or the Prospectus or for additional information relating thereto. The
Company will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with the Commission
pursuant to Rule 424 as in the opinion of Counsel for the Underwriters
a prospectus covering the Securities is required by law to be
delivered in connection with sales of Securities by an Underwriter or
dealer, any event relating to or affecting either of the TXUA
Companies, as to which the Company shall give you and Counsel for the
Underwriters prompt notice after the Company becomes aware of such
event, or of which the Company shall be advised in writing by you
shall occur that in the Company's reasonable opinion after
consultation with Counsel for the Underwriters should be set forth in
a supplement to, or an amendment of, the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances when
it is delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing and
furnishing to you at the Company's expense a reasonable number of
copies of a supplement or supplements or an amendment or amendments to
the Prospectus or (ii) making an appropriate filing pursuant to
Section 13 of the Exchange Act, which will supplement or amend the
Prospectus so that, as supplemented or amended, it will not contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser,
not misleading; provided that should such event relate solely to the
activities of any of the Underwriters, then the Underwriters shall
assume the expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver a
prospectus after the expiration of nine months from the date the
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Prospectus is filed with the Commission pursuant to Rule 424, the
Company, upon such Underwriter's request, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act. The Company will
not file any amendment to the Registration Statement or amendment or
supplement to the Prospectus on or after the date of this Agreement
and prior to the expiration of the period specified in the first
sentence of this Section 7(d), without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing.
(e) It will make generally available to its security holders
and the holders of the Securities, as soon as practicable, an earning
statement of the Company (which need not be audited) covering a period
of at least twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the effective
date of the Registration Statement as defined in Rule 158 of the rules
and regulations of the Commission under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Securities
for offer and sale under the blue-sky laws of such jurisdictions as
you may designate, provided that the neither of the TXUA Companies
shall be required to qualify to do business in any jurisdiction, to
qualify as a dealer in securities, to file any consents to service of
process under the laws of any jurisdiction, or to meet any other
requirements deemed by the TXUA Companies to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and
taxes (except transfer taxes) in connection with (i) the preparation
and filing by it of the Registration Statement, (ii) the issuance and
delivery of the Securities as provided in Section 6 hereof, (iii) the
qualification of the Securities under blue-sky laws (including counsel
fees not to exceed $7,500), (iv) the printing and delivery to the
Underwriters of reasonable quantities of the Registration Statement
and, except as provided in Section 7(d) hereof, of the Preliminary
Prospectus, the Prospectus and of any supplements or amendments
thereto, (v) the rating of the Securities by securities rating
organizations selected by the Company, and (vi) the listing of the
Securities on The New York Stock Exchange, Inc. ("NYSE"). The Company
shall not, however, be required to pay any amount for any expenses of
yours or any of the Underwriters, except that, if this Agreement shall
be terminated in accordance with the provisions of Section 6, 8 or 11
hereof, the Company will reimburse you for the fees and disbursements
of Counsel for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and will reimburse the
Underwriters for their reasonable out-of-pocket expenses, in an
aggregate amount not exceeding $5,000, incurred in contemplation of
the performance of this Agreement. The Company shall not in any event
be liable to any of the several Underwriters for damages on account of
loss of anticipated profits.
(h) During the period from the date of this Agreement to the
Closing Date, neither of the TXUA Companies will, without the prior
written consent of the Representatives, directly or indirectly,
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publicly issue, sell, offer or contract to sell, in the market in
which the Securities are being offered and sold, any securities of the
TXUA Companies or any of their subsidiaries that are similar to, or of
the same class as, the Securities.
(i) It will use, or cause to be used, reasonable best
efforts to list, subject to notice of issuance, the Securities on the
New York Stock Exchange, subject to the Underwriters making the
required distribution of the Securities, and to register the
Securities under the Exchange Act.
8. Conditions of Underwriters' Obligations. The several obligations
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of the Underwriters to purchase and pay for the Securities to be issued on the
Closing Date shall be subject to the accuracy of the representations and
warranties made herein on the part of each of the TXUA Companies at the date
hereof and on the Closing Date, to the performance by each of the TXUA Companies
of its obligations to be performed hereunder prior to the Closing Date, and to
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 prior to 5:30 P.M., New York Time, on the second
business day after the date of this Agreement, or such other time and
date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending before, or threatened by, the Commission on
the Closing Date; and you shall have received a certificate, dated the
Closing Date and signed by an officer of the Company, to the effect
that (A) no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the Company
threatened by, the Commission and (B) the representations and
warranties of the TXUA Companies in Section 3 hereof are true and
correct with the same force and effect as if made on the Closing Date.
(c) On the Closing Date, you shall have received from Xxxxx
& XxXxxxxx, Austalian Counsel for the TXUA Companies, and the material
subsidiaries of the TXUA Companies, Xxxxxxx Xxxxxxxx Xxxxxxxxxx LLP,
United States counsel for the TXUA Companies, Xxxxxx Xxxx & Priest
LLP, special United States counsel for the TXUA Companies, Winthrop,
Stimson, Xxxxxx & Xxxxxxx, Counsel for the Underwriters, opinions in
substantially the form and substance prescribed in Schedules III, IV,
V, and VI hereto (i) with such changes therein as may be agreed upon
by the Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Securities
shall be supplemented or amended after the Prospectus shall have been
filed with the Commission pursuant to Rule 424, with any changes
therein necessary to reflect such supplement or amendment.
(d) On and as of each of the date hereof and the Closing
Date, you shall have received from Deloitte Touche Tohmatsu LLP,
independent auditors, a letter in form and substance reasonably
satisfactory to Counsel to the Underwriters, containing statements and
-11-
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Prospectus; provided
that each such letter shall use a "cut-off date" not earlier than
[five] days preceeding the date of delivery of each such letter.
(e) Since the most recent dates as of which information is
given in the Registration Statement or the Prospectus there shall not
have been any material adverse change in the business, property or
financial condition of the TXUA Companies and their subsidiaries,
considered as a whole, whether or not in the ordinary course of
business, and, since such dates, there shall not have been any
material transaction entered into by the TXUA Companies, other than
transactions in the ordinary course of business and transactions
contemplated by the Registration Statement or the Prospectus, and at
the Closing Date the Representatives shall have received a certificate
to such effect dated the Closing Date and signed by an officer of the
Company.
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities as described in the Prospectus
shall have been satisfactory in form and substance to Counsel for the
Underwriters.
(g) At the Closing Date, (i) the Securities shall be rated
at least by Xxxxx'x Investor Services ("Moody's"), and by
---- ----
Standard & Poor's Corporation ("S&P"), respectively, and the Company
shall have delivered to the Representatives a letter from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings, and (ii) neither
Moody's nor S&P shall have downgraded the ratings assigned to, or
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of, the Securities, any
other securities of the Company or a special purpose entity or special
purpose subsidiary of the Company which are of the same class as the
Securities or the financial condition of the Company.
(h) At the Closing Date (i) the Securities shall have been
approved for listing on the NYSE, and (ii) a registration statement on
Form 8-A shall have been filed relating to the Securities with the
Commission under the Exchange Act.
In case any of the conditions specified above in this Section 8 shall
not have been fulfilled as of the Closing Date, this Agreement may be terminated
by the Representatives upon notice thereof to the Company. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 7(g) and 10 hereof.
9. Conditions of Company's Obligations. The obligation of the
-----------------------------------
Company to deliver the Securities shall be subject to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 prior to 5:30 P.M., New York Time, on the second
business day after the date of this Agreement or such other time and
date as may be approved by the Company.
-12-
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and no
proceedings for that purpose shall be pending before, or threatened
by, the Commission at the Closing Date.
In case any of the conditions specified above in this Section 9 shall
not have been fulfilled as of the Closing Date, this Agreement may be terminated
by the Company upon notice thereof to the Representatives. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 7(g) and 10 hereof.
10. Indemnification.
---------------
(a) The TXUA Companies shall jointly and severally
indemnify, defend and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law
and shall reimburse each such Underwriter and controlling person for
any legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) when and as incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
the Preliminary Prospectus or the Prospectus, or any amendment or
supplement to any thereof or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein in the light of the circumstances under
which they were made not misleading, except, in the case of the
Preliminary Prospectus, if such untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the
Prospectus; provided, however, that the indemnity agreement contained
in this Section 10 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information furnished in
writing to either of the TXUA Companies by or on behalf of any
Underwriter, through the Representatives or Counsel for the
Underwriters, expressly for use in the Registration Statement, the
Preliminary Prospectus or the Prospectus, or any amendment or
supplement to any thereof, or arising out of, or based upon,
statements in or omissions from that part of the Registration
Statement that shall constitute the Statements of Eligibility and
Qualification under the Trust Indenture Act of any trustee with
respect to any indenture qualified pursuant to the Registration
Statement; and provided further, that the indemnity agreement
contained in this Section 10 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Securities to any person if a copy of the
Prospectus, as the same shall be amended or supplemented, shall not
have been given or sent to such person by or on behalf of such
-13-
Underwriter with or prior to the written confirmation of the sale
involved unless (i) the alleged omission or alleged untrue statement
was not corrected in the Prospectus as amended or supplemented at the
time of such written confirmation or (ii) the Prospectus, as amended
or supplemented, was not timely delivered to the Underwriters by the
Company at the time of the written confirmation of the sale involved.
The indemnity agreement of the TXUA Companies contained in this
Section 10 and the representations and warranties of the TXUA
Companies contained in Section 3 hereof shall remain operative and in
full force and effect regardless of any termination of this Agreement
or of any investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of the
Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless each of the TXUA Companies, its officers and directors, and
each person who controls either such TXUA Company within the meaning
of Section 15 of the Securities Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) when and as incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or the Prospectus, or any amendment or supplement to either thereof,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, if such statement or omission was made in reliance
upon and in conformity with information furnished in writing to the
TXUA Companies by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in connection
with the preparation of the Registration Statement, the Preliminary
Prospectus or the Prospectus, or any amendment or supplement to either
thereof. Each Underwriter hereby furnishes to the TXUA Companies in
writing expressly for use in the Prospectus (i) the statements in the
Prospectus relating to market-making for the Securities on page __ in
the _____ sentence of the paragraph entitled "______________" and (ii)
in the "Underwriting" section of the Prospectus, the list of
underwriters and the principal amount of Securities to be purchased by
each of them, statements in the fifth paragraph, statements in the
last sentence of the sixth paragraph, and statements relating to
stabilization, overallotment, and reclamation of selling concessions
in the eighth paragraph. The indemnity agreement of the respective
Underwriters contained in this Section 10 shall remain operative and
in full force and effect regardless of any termination of this
Agreement or of any investigation made by or on behalf of either TXUA
Company, its directors, officers, partners or trustees, any such
Underwriter, or any such controlling person, and shall survive the
delivery of the Securities.
-14-
(c) Each of the TXUA Companies and the several Underwriters
each shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid, in
respect of which indemnity may be sought on account of any indemnity
agreement contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom indemnity
shall be sought hereunder, but the failure so to notify such
indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability hereunder to the
extent it is not materially prejudiced as a result of such failure to
notify and in any event shall not relieve it from any liability that
it or they may have to the indemnified party otherwise than on account
of such indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense, or, if it so elects, to
assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted
by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect not to
assume the defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them; provided, however, if
the defendants in any such action (including impleaded parties)
include both the indemnified party and the indemnifying party and
counsel for the indemnified party shall have reasonably concluded that
there may be a conflict of interest involved in the representation by
a single counsel of both the indemnifying party and the indemnified
party, the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party, whose fees
and expenses shall be paid by such indemnifying party (it being
understood, however, that the indemnifying party shall not be liable
for the fees and expenses of more than one separate counsel (in
addition to local counsel) representing the indemnified parties who
are parties to such action). Each of the TXUA Companies and the
several Underwriters agree that without the other parties' prior
written consent, which consent shall not be unreasonably withheld, it
will not settle, compromise or consent to the entry of any judgment in
any claim in respect of which indemnification may be sought under the
indemnification provision of this Agreement, unless such settlement,
compromise or consent (i) includes an unconditional release of such
other party from all liability arising out of such claim and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of such other party.
(d) If the indemnification provided for in subparagraph (a)
or (b) above shall be unenforceable under applicable law by an
indemnified party, each indemnifying party agrees to contribute to
such indemnified party with respect to any and all losses, claims,
damages, liabilities and expenses for which each such indemnification
provided for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i) the relative
fault of each indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions that
have resulted in such losses, claims, damages, liabilities and
-15-
expenses, (ii) the relative benefits received by the TXUA Companies on
the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement, and (iii) any other
relevant equitable considerations; provided, however, that no
indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
party or the indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The TXUA Companies and each of the
several Underwriters agree that it would not be just and equitable if
contributions pursuant to this subparagraph (d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute in excess of the amount
equal to the excess of (i) the total price at which the Securities
underwritten by it were offered to the public, over (ii) the amount of
any damages which such Underwriter has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission
or alleged omission. The obligations of each Underwriter to contribute
pursuant to this Section 10 are several and not joint and shall be in
proportion to the principal amount of Securities set forth opposite
its name in Schedule II hereto.
11. Termination. This Agreement may be terminated at any time at or
-----------
prior to the Closing Date by the Representatives by written notice to the
Company if after the date hereof and at or prior to the Closing Date, (a) there
shall have occurred any general suspension of trading in securities on the NYSE,
the American Stock Exchange, Inc. ("AMEX"), the NASDAQ Stock Market, Inc.
("NASDAQ") or the Australian Stock Exchange ("ASX") or there shall have been
established by the NYSE, the AMEX, the NASDAQ or the ASX or by the Commission or
by any government or governmental agency in the United States or Australia or by
the decision of any court, any general limitation on prices for such trading or
any general restrictions on the distribution of securities, or a general banking
moratorium declared by New York, United States or Australian authorities, (b)
there shall have occurred any suspension of trading on the NYSE, the AMEX, the
NASDAQ or the ASX in any of the securities of the Company or any special purpose
subsidiary of the Company, or (c) there shall have occurred any (i) new material
outbreak of hostilities or (ii) new material other national or international
calamity or crisis, including, but not limited to, an escalation of hostilities
that existed prior to the date of this Agreement or (iii) material adverse
change in the financial markets in the United States or Australia, and the
effect of any such event specified in subparagraph (a), (b) or (c) above on the
financial markets of the United States or Australia shall be such as to make it
impracticable, in the reasonable judgment of the Representatives, for the
Underwriters to enforce contracts for the sale of the Securities. This Agreement
may also be terminated at any time at or prior to the Closing Date by the
Representatives if, in their reasonable judgment, the subject matter of any
amendment or supplement to the Registration Statement or the Prospectus (other
-16-
than an amendment or supplement relating solely to the activity of any
Underwriter or Underwriters) prepared and issued by the Company after the
effectiveness of this Agreement shall have disclosed a material adverse change
in the business, property or financial condition of the TXUA Companies and their
subsidiaries, considered as a whole, whether or not in the ordinary course of
business, that has materially impaired the marketability of the Securities. Any
termination hereof pursuant to this Section 11 shall be without liability of any
party to any other party except as otherwise provided in Sections 7(g) and 10
hereof.
12. Miscellaneous. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT
-------------
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement shall
inure to the benefit of the TXUA Companies, the several Underwriters and, with
respect to the provisions of Section 10 hereof, each director, officer and
controlling person referred to in said Section 10, and their respective
successors. Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Agreement. The term "successor" as
used herein shall not include any purchaser, as such purchaser, of any of the
Securities from any of the several Underwriters.
13. Consent to Jurisdiction; Appointment of Agent to Accept Service
----------------------------------------------------------------
of Process. Each of the TXUA Companies irrevocably submits to the non-exclusive
----------
jurisdiction of any federal or state court in Xxx Xxxx, Xxxxxx xxx Xxxxx xx Xxx
Xxxx, Xxxxxx Xxxxxx of America, in any legal suit, action or proceeding based on
or arising under this Agreement and agrees that all claims in respect of such
suit or proceeding may be determined in any such court. Each of the TXUA
Companies irrevocably waives the defense of an inconvenient forum or objections
to personal jurisdiction with respect to the maintenance of such legal suit,
action or proceeding. To the extent permitted by law, each of the TXUA Companies
hereby waives any objection to the enforcement by any competent court in
Australia of, and, to the relitigation before any competent court in Australia
in connection with, any judgment validly obtained in any such court in New York
on the basis of any such legal suit, action or proceeding. Each of the TXUA
Companies has appointed Xxxxxx Xxxx & Priest LLP (the "Process Agent") as its
authorized agent upon whom process may be served in any such legal suit, action
or proceeding. Such appointment shall be irrevocable. The Process Agent has
agreed to act as said agent for service of process and each of the TXUA
Companies agrees to take any and all action including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Each of the TXUA Companies further agrees
that service of process upon the Process Agent and written notice of said
service to each of the TXUA Companies shall be deemed in every respect effective
service of process upon each of the TXUA Companies in any such legal suit,
action or proceeding. Nothing herein shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law. The provisions of this Section 13 shall remain operative and
in full force and effect regardless of any termination of this Agreement, in
whole or in part.
14. Waiver of Immunities. To the extent that the TXUA Companies or
--------------------
any of their respective properties, assets or revenues may have or may hereafter
become entitled to, or have attributed to it, any right of immunity, on the
grounds of sovereignty or otherwise, from any legal action, suit or proceeding,
-17-
from the giving of any relief in any thereof, from set-off or counterclaim, from
the jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the Securities, the Indenture or this Agreement, each of them hereby irrevocably
and unconditionally waives and agrees not to plead or claim, any such immunity
and consents to such relief and enforcement. Nothing in this Section 14 shall be
deemed to waive any defense (other than any such immunity) available to the TXUA
Companies. The provisions of this Section 14 shall remain operative and in full
force and effect regardless of any termination of this Agreement, in whole or in
part.
15. Foreign Taxes.
-------------
(a) All payments by any party to another party hereunder
shall be made free and clear of, and without withholding or deduction
for or on account of, any present or future income, stamp, or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any jurisdiction in which such party is managed or has a
place of business or in which any such party has a branch or office
from which payment is made or deemed to be made (each, a "Taxing
Jurisdiction"), unless such withholding or deduction is required by
law. In the event of any such withholding or deduction ("Foreign
Taxes"), such payor shall pay to the payee such additional amount as
shall be necessary in order that the amount received by such payee
after withholding or deduction shall equal the amount that would
otherwise have been due to such payee in the absence of such
withholding or deduction, except that no such amounts shall be payable
under this Section 15 for:
(i) any such tax imposed by reason of any payee
having some connection with the relevant Taxing Jurisdiction
(including being a citizen or resident or national of, or
carrying on a business or maintaining a permanent
establishment in, such Taxing Jurisdiction) other than its
participation as a party hereunder; and
(ii) any income or franchise tax on the overall
net income of any payee imposed by the United States or by
the State of New York or any political subdivision of the
United States or of the State of New York.
(b) In the event any payee obtains any actual payment of
refund, credit, allowance, remission or other deduction of, against or
from income or taxable income otherwise determined or taxes otherwise
payable to which it may be entitled from the relevant Taxing
Jurisdiction in respect of any Foreign Taxes paid on the payee's
behalf or for which the payee has received reimbursement, the payee
shall, to the extent it can do so without prejudice to the retention
of the amount so realized (after taking into account any net
additional taxes paid in connection with the realization thereof),
-18-
notify the payor and pay to the payor (to the extent that the same
shall not already have been taken into account in computing any amount
previously paid by the payor or the amount of any reimbursement
previously received by the payee) promptly after the realization
thereof an amount which is equal to the net amount thereof (or, in the
event of a deduction from taxable income, the tax benefit generated
thereby, if less than such deduction) plus any additional tax savings
resulting from the payment pursuant to this sentence, provided that
the aggregate of all such payments shall not exceed the aggregate of
all amounts paid by the payor in respect of such Foreign Taxes.
The provisions of this Section 15 shall remain operative and in full
force and effect regardless of any termination of this Agreement, in whole or in
part.
16. Obligation Currency. The obligation of the parties to make
-------------------
payments hereunder is in U.S. dollars (the "Obligation Currency") and such
obligation shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in any currency other than the Obligation
Currency or any other realization in such other currency, whether as proceeds of
set-off, security, guarantee, distributions, or otherwise, except to the extent
to which such tender, recovery or realization shall result in the receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder. The party liable to make such
payment agrees to indemnify the party which is to receive such payment for the
amount (if any) by which such receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and the party which is to
receive such payment agrees to pay to the party liable to make such payment the
amount (if any) by which such receipt shall exceed the full amount of the
Obligation Currency, and, in each case, such obligation shall not be affected by
judgment being obtained for any other sums due under this Agreement. The parties
agree that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of the Obligation Currency expressed to
be payable hereunder shall be the noon buying rate in New York City for cable
transfers in foreign currencies as certified for customs purposes by the Federal
Reserve Bank of New York for the business day preceding that on which the
judgment becomes a final judgment.
17. Notices. All communications hereunder shall be in writing, and,
-------
if to the Underwriters, shall be mailed or delivered to you at the address set
forth above, or, if to any of the TXUA Companies, shall be mailed or delivered
to it, to each of the following addresses: c/o TXU Australia Holdings
(Partnership) Limited Partnership, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxx 0000, Attention: Treasurer; and c/o TXU Corp, Energy Plaza, 0000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Treasurer.
18. Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
-19-
If the foregoing is in accordance with your understanding of our agreement,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the TXUA Companies and the several Underwriters in accordance
with its terms.
Very truly yours,
TXU AUSTRALIA HOLDINGS
(PARTNERSHIP) LIMITED PARTNERSHIP
By
--------------------------------------
(Authorized Representative)
TXU AUSTRALIA HOLDINGS (AGP) PTY
LTD
By
--------------------------------------
(Authorized Representative)
Accepted and delivered as of
the date first above written
Xxxxxxx Xxxxx Barney Inc.
as representatives of the several
Underwriters named in Schedule II hereto
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-----------------------------
(TITLE)
-20-
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives: ------------------------
Xxxxxxx Xxxxx Barney Inc.
Designation: % Junior Maturing Principal Securities Due
--- ----------
Distribution Rate: %
---
Purchase Price: %
---
Underwriting Commissions %
---
Public Offering Price: %
---
I-1
SCHEDULE II
-----------
TXU Australia Holdings (Partnership) Limited Partnership
JUMPS
Principal Amount of
Underwriter JUMPS
----------- -----
Xxxxxxx Xxxxx Xxxxxx Inc.
-------------
Total $300,000,000
=============
II-1
SCHEDULE III
------------
[LETTERHEAD OF XXXXX & XxXXXXXX]
[Date]
Xxxxxxx Xxxxx Barney Inc.
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
New York, New York
Ladies and Gentlemen:
1.1 We have acted as Australian legal advisers to TXU Australia Holdings
(Partnership) Limited Partnership, a limited partnership formed under
the laws of Victoria, Australia (the "Company"), and the Company's
general partner, TXU Australia Holdings Pty Ltd, a limited liability
company incorporated under the laws of Victoria, Australia ("AGP" and
hereinafter, together with the Company, the "TXUA Companies"), in
connection with the issuance and sale of the Securities. We refer to:
(a) the US$300,000,000 aggregate principal amount of __% Junior
Maturing Principal Securities of the Company (the "Securities");
(b) the Indenture dated as of ________, 2000 and made among the
Company and The Bank of New York (the "Indenture");
(c) the Underwriting Agreement dated __________, 2000 and made among
the Underwriters named therein, the Company and AGP (the
"Underwriting Agreement").
Expressions defined in the Underwriting Agreement have the same
meanings where used in this opinion. Reference in this opinion to the
III-1
"Agreements" is a reference to the Indenture and the Underwriting
Agreement and to "Agreement" to any one of them.
1.2 We are delivering this opinion to you at the request of our clients
pursuant to Section 8(c) of the Underwriting Agreement. Our opinion
relates solely to Australian law as applied by the Australian courts
at the date of this opinion. We do not assume any obligation to advise
you (or any other person authorized to rely upon this opinion) of any
subsequent change in Australian law which might affect the contents of
this opinion.
1.3 We have examined originals or copies, certified to our satisfaction,
of the following documents:
(a) the Indenture;
(b) the Underwriting Agreement;
(c) the Prospectus dated_________, 2000 (the "Prospectus") issued in
respect of the offering of the Securities;
(d) the form of the Securities.
2. We have made such other enquiries and examined such other documents as
we have considered appropriate for the purpose of giving the opinion
set out below.
3. For the purposes of this opinion, we have assumed:
[STANDARD B&M OPINION ASSUMPTIONS TO BE REFLECTED]
4. Upon the basis of our familiarity with these transactions and
with the affairs and properties of our clients generally, we are of the
following opinion:
(a) that statements made in the Prospectus under the caption
"Material Income Tax Considerations - Material Australian Income
Tax Considerations", which are expressed to represent a summary
of certain current Australian tax consequences for those holders
of Securities to whom that summary relates are an accurate
summary of the matters dealt therein;
(b) no Australian stamp duty, stamp duty reserve tax, transfer tax or
other similar documentary or registration tax or duty is payable
in connection with the issue and delivery of the Securities at
closing or upon the execution and performance of the Agreements;
(c) under current practice, an Australian court of competent
jurisdiction would give effect to the choice of the internal laws
III-2
of the State of New York as the proper law of the Agreements if
its application in the circumstances of the case would not (i) be
contrary to public policy and we know of no reason as to why the
same should be contrary to public policy, or (ii) conflict with
any rule of Australian law which is of mandatory application and
we know of no contractual provision which the Australian courts
might decline to enforce on this basis. Under Australian law and
subject to the above qualification, the Company has, pursuant to
Section 13 of the Underwriting Agreement, validly submitted to
the in personam jurisdiction of the state and federal courts
located in the City, County and State of New York in any action,
suit or proceeding arising out of or relating to the Agreements;
(d) each of the TXUA Companies is duly incorporated or formed and
registered, as the case may be, and validly existing under the
laws of Victoria, Australia;
(e) The Underwriting Agreement has been duly authorized, executed and
delivered by each of the TXUA Companies;
(e) The Securities and the Indenture have been duly authorized,
executed and delivered by the Company and the Securities and the
Indenture are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of
general principles of equity; and
(f) No approval, authorization, consent or order of any Australian
public board or body is legally required for the consummation by
the TXUA Companies of the transactions contemplated by the
Underwriting Agreement and the Prospectus.
[EITHER B&M OR TXUA IN-HOUSE COUNSEL TO GIVE 10-B(5) OPINION.]
5. The qualifications to which this opinion is subject are as follows:
[STANDARD B&M OPINION QUALIFICATIONS TO BE REFLECTED]
6. This opinion is addressed to you personally. It may not be relied upon
by anyone else without our prior written consent; provided, however,
that Xxxxxxx Xxxxxxxx Woodridge LLP, Xxxxxx Xxxx & Priest LLP and
Winthrop, Stimson, Xxxxxx & Xxxxxxx may each rely on the opinions
III-3
expressed in paragraph 4 hereof for purposes of their respective
opinions addressed to you of even date herewith. This opinion:
(a) [may not be disclosed in whole or part by you to anyone other
than persons who in the ordinary course of your business or that
of any other party who is authorised to rely on this opinion have
access to your or such party's papers and records and on the
basis that such persons will similarly make no further
disclosure; and
(b) may not be filed with any governmental agency or authority or
quoted in any public document without, in any such case, our
prior written consent.]
7. This opinion is strictly limited to the matters stated herein and is
not to be read as extending by implication to any other matter in
connection with the Agreements, the issue of the Securities or
otherwise.
Yours faithfully,
Xxxxx & XxXxxxxx
III-4
SCHEDULE IV
-----------
[LETTERHEAD OF XXXXXXX XXXXXXXX XXXXXXXXXX LLP]
[Date]
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
New York, New York
Ladies and Gentlemen:
We have acted as United States counsel for TXU Australia Holdings
(Partnership) Limited Partnership, a limited partnership formed under the laws
of Victoria, Australia (the "Company") and the Company's general partner, TXU
Australia Holdings Pty Ltd, a limited liability company incorporated under the
laws of Victoria, Australia ("AGP" and hereinafter, together with the Company,
the "TXUA Companies") in connection with transactions contemplated by the
Underwriting Agreement dated , 2000 among the TXUA Companies and you
------------
(the "Underwriting Agreement"), including, among others, (i) the issuance by the
Company of US$300,000,000 principal amount of its % Junior Maturing Principal
--
Securities (the "Securities") pursuant to an Indenture, dated ,
--------
2000,(the "Indenture") among the Company and The Bank of New York, as trustee.
This opinion is being furnished to you at the request of our clients
pursuant to Section 8(c) of the Underwriting Agreement. Terms not otherwise
defined herein are used with the meanings ascribed to them in the Underwriting
Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, the Indenture and the Securities. We have also examined
such other documents and satisfied ourselves as to such other matters as we have
deemed necessary as a basis for the conclusions of law contained in the opinions
expressed below. We have relied as to various questions of fact upon the
representations and warranties of the TXUA Companies contained in the
Underwriting Agreement and, where we deemed appropriate, on certificates of
public officials. We have relied upon certificates of The Bank of New York, as
VII-1
trustee under the Indenture as to the authentication of the Securities. In our
examination we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as photostatic or certified
copies.
Upon the basis of our familiarity with these transactions and with the
affairs and properties of the TXUA Companies generally, we are of the opinion
that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the TXUA Companies.
2. The Indenture has been duly qualified under the Trust Indenture
Act.
3. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities are entitled to the
benefits of the Indenture; and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
4. The statements made in the Prospectus under the captions
"Description of the JUMPS", insofar as such statements constitute summaries of
the legal matters or documents referred to therein, are accurate in all material
respects.
5. None of the Company or AGP is, or after giving effect to the
issuance and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus will be, directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
6. No approval, authorization, consent or order of any public board
or body (other than (i) such as have been obtained under the Securities Act, the
Exchange Act, the Trust Indenture Act or the applicable rules and regulations
thereunder and (ii) in connection or in compliance with the provisions of the
blue-sky laws of any jurisdiction) is legally required for the consummation by
the TXUA Companies of the transactions contemplated by the Underwriting
Agreement and the Prospectus.
VII-2
7. The Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (in each case except for financial statements and
schedules and other financial and statistical data contained therein and except
for that part of the Registration Statement that constitutes the Forms T-1, as
to which we do not express any belief) complied as to form in all material
respects with the Securities Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder; and the Registration
Statement has been declared effective by the Commission and, to our best
knowledge, no proceedings for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act.
In the course of the preparation of the information relating to the
TXUA Companies contained in the Registration Statement and the Prospectus, we
had discussions with certain of the Company's officers and representatives and
certain officers and representatives of certain of its subsidiaries, with other
counsel for the Company, and with Deloitte Touche Tohmatsu, the Company's
independent accountants, but we made no independent verification of the accuracy
or completeness of the representations and statements made to us by the TXUA
Companies or the information included by the TXUA Companies in the Prospectus
and take no responsibility therefor except as set forth in paragraph 4 above.
However, our examination of the information relating to the TXUA Companies
contained in the Registration Statement and the Prospectus and our discussions
did not disclose to us anything which gives us reason to believe that (in each
case, except for financial statements and schedules and financial and
statistical data contained therein and except for that part of the Registration
Statement that constitutes the Forms T-1, as to which we do not express any
belief) (i) the Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (ii) the Prospectus at the time it was filed with the Commission pursuant to
Rule 424, included, or on the date hereof, includes an untrue statement of a
material fact or on such dates omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the State Bar of Texas and do not hold ourselves out
as experts on the laws of the State of New York or the laws of Australia. As to
all matters of New York law, we have, with your consent, relied upon the opinion
of Xxxxxx Xxxx & Priest LLP, New York, New York, special United States counsel
to the TXUA Companies, addressed to you of even date herewith; as to matters of
Australian law, we have, with your consent relied upon the opinion of Xxxxx &
XxXxxxxx, Australian Counsel for the TXUA Companies, addressed to you of even
date herewith.
VII-3
Very truly yours,
XXXXXXX XXXXXXXX XXXXXXXXXX LLP
By:
--------------------------
A Partner
VII-4
SCHEDULE V
----------
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
New York, New York
[Date]
Xxxxxxx Xxxxx Barney Inc.
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
New York, New York
Ladies and Gentlemen:
We have acted as special United States counsel for TXU Australia
Holdings (Partnership) Limited Partnership, a limited partnership formed under
the laws of Victoria, Australia (the "Company") and the Company's general
partner, TXU Australia Holdings Pty Ltd, a limited liability company
incorporated under the laws of Victoria, Australia ("AGP" and hereinafter,
together with the Company, the "TXUA Companies") in connection with transactions
contemplated by the Underwriting Agreement dated , 2000 among the
------------
TXUA Companies and you (the "Underwriting Agreement"), including, among others,
(i) the issuance by the Company of US$300,000,000 principal amount of its %
Junior Maturing Principal Securities (the "Securities") pursuant to an
Indenture, dated , 2000,(the "Indenture") among the Company and The Bank
--------
of New York, as trustee.
This opinion is being furnished to you at the request of our clients
pursuant to Section 8(c) of the Underwriting Agreement. Terms not otherwise
defined herein are used with the meanings ascribed to them in the Underwriting
Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, the Indenture, and the Securities. We have also examined
such other documents and satisfied ourselves as to such other matters as we have
deemed necessary as a basis for the conclusions of law contained in the opinions
VII-5
expressed below. We have relied as to various questions of fact upon the
representations and warranties of the TXUA Companies contained in the
Underwriting Agreement and, where we deemed appropriate, on certificates of
public officials. We have relied upon certificates of The Bank of New York, as
trustee under the Indenture as to the authentication of the Securities. In our
examination we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as photostatic or certified
copies.
Upon the basis of our familiarity with these transactions and with the
affairs and properties of the TXUA Companies generally, we are of the opinion
that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company and AGP.
2. The Indenture has been duly qualified under the Trust Indenture
Act.
3. The Indenture and the Securities have been duly authorized,
executed and delivered by the Company; the Securities are entitled to the
benefits of the Indenture; and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
4. The statements made in the Prospectus under the captions
"Description of the JUMPS", insofar as such statements constitute summaries of
the legal matters or documents referred to therein, are accurate in all material
respects.
5. Neither the Company nor AGP is, or after giving effect to the
issuance and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus will be, directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
6. The Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (in each case except for financial statements and
schedules and other financial and statistical data contained therein and except
for that part of the Registration Statement that constitutes the Forms T-1, as
to which we do not express any belief) complied as to form in all material
respects with the Securities Act, the Trust Indenture Act and the applicable
VII-6
rules and regulations of the Commission thereunder; and the Registration
Statement has been declared effective by the Commission and, to our best
knowledge, no proceedings for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act.
7. No approval, authorization, consent or order of any public board
or body (other than (i) such as have been obtained under the Securities Act, the
Exchange Act, the Trust Indenture Act or the applicable rules and regulations
thereunder and (ii) in connection or in compliance with the provisions of the
blue-sky laws of any jurisdiction) is legally required for the consummation by
the TXUA Companies of the transactions contemplated by the Underwriting
Agreement and the Prospectus.
8. We herewith confirm as our opinion the statements under the
caption "Material Tax Considerations--US Income Tax Considerations" in the
Prospectus.
In the course of the preparation of the information relating to the
TXUA Companies contained in the Registration Statement and the Prospectus, we
had discussions with certain of the Company's officers and representatives and
certain officers and representatives of certain of its subsidiaries, with other
counsel for the Company, with Deloitte Touche Tohmatsu, the Company's
independent accountants, but we made no independent verification of the accuracy
or completeness of the representations and statements made to us by the TXUA
Companies or the information included by the TXUA Companies in the Prospectus
and take no responsibility therefor except as set forth in paragraphs 4 and 8
above. However, our examination of the information relating to the TXUA
Companies contained in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason to believe
that (in each case, except for financial statements and schedules and financial
and statistical data contained therein and except for that part of the
Registration Statement that constitutes the Forms T-1, as to which we do not
express any belief) (i) the Registration Statement, as of the Effective Date,
included an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (ii) the Prospectus at the time it was filed with the
Commission pursuant to Rule 424, included, or on the date hereof, includes an
untrue statement of a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of Australia. As to all matters of Australian law, we have,
with your consent, relied upon the opinions of Xxxxx & XxXxxxxx, Australian
Counsel for the Company and AGP, addressed to you of even date herewith.
VII-7
Very truly yours,
XXXXXX XXXX & PRIEST LLP
VII-8
SCHEDULE VI
-----------
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
Xxxxxxx Xxxxx Barney Inc.
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
New York, New York
Ladies and Gentlemen:
We have acted as counsel to you and the several Underwriters in
connection with the transactions contemplated by the Underwriting Agreement
dated , 0000 xxxxx XXX Xxxxxxxxx Holdings (Partnership) Limited
------------
Partnership, a limited partnership formed under the laws of Victoria, Australia
(the "Company") and the Company's general partner, TXU Australia Holdings Pty
Ltd, a limited liability company incorporated under the laws of Victoria,
Australia ("AGP" and hereinafter, together with the Company, the "TXUA
Companies") and you (the "Underwriting Agreement"), including, among others, (i)
the issuance by the Company of US$300,000,000 principal amount of its % Junior
Maturing Principal Securities (the "Securities") pursuant to an Indenture, dated
________, 2000,(the "Indenture") among the Company and The Bank of New York, as
trustee.
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold ourselves out as
experts in the laws of Australia or of any other jurisdiction except New York
and the federal laws of the United States. We have, with your consent, relied
upon opinions of even date herewith addressed to you by Xxxxx & XxXxxxxx,
Australian Counsel for the TXUA Companies as to all matters of Australian law.
We have, in addition, examined the documents described in the list of
closing papers as having been delivered to you at the closing and such other
documents and satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to express this opinion. As to various questions
X-1
of fact material to this opinion, we have relied upon representations of the
TXUA Companies and statements in the Prospectus hereinafter mentioned. We have
relied upon a certificate of the Trustee as to the due authentication of the
Securities by the Trustee. In such examination we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents submitted to us as
certified or photostatic copies.
Based upon the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the TXUA Companies.
2. The Indenture has been duly qualified under the Trust Indenture
Act.
3. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities are entitled to the
benefits of the Indenture; and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
4. The statements made in the Prospectus under the captions
"Description of the JUMPS," insofar as such statements constitute summaries of
the legal matters or documents referred to therein, are accurate in all material
respects.
5. The Registration Statement, at the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (in each case except for financial statements and
schedules and other financial and statistical data contained therein and except
for that part of the Registration Statement that constitutes the Forms T-1, as
to which we do not express any belief) complied as to form in all material
respects with the Securities Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder.
In passing upon the form of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made by the TXUA Companies and the information included in the
Registration Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth in paragraph 4
above. In the course of the preparation by the TXUA Companies of the
Registration Statement and the Prospectus, we have had discussions with certain
of its officers and representatives, and certain officers and representatives of
certain of its subsidiaries, with counsel for the TXUA Companies, and with
Deloitte Touche Tohmatsu, the TXUA Companies' independent accountants, and with
certain of your representatives. Our examination of the Registration Statement
and the Prospectus and our discussions did not disclose to us any information
which gives us reason to believe that at the Effective Date the Registration
Statement contained an untrue statement of a material fact or omitted to state a
X-2
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424, or at the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do not express any
belief as to the financial statements or other financial or statistical data
contained or incorporated by reference in the Prospectus or as to that part of
the Registration Statement that constitutes the Forms T-1.
This opinion is given to you solely for the use of the several
Underwriters in connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other person or for
any other purpose.
Very truly yours,
X-3
